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Gopi Nath Alias Danadan v. Iiird A.D.J.Banda And Others - WRIT - A No. 11079 of 1984 [2005] RD-AH 361 (7 February 2005)


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Court No.26

Civil Misc. Writ Petition No.11079 of 1984

Gopinath alias Danadan                       ........Petitioner


IIIrd Addl.District Judge,Banda & others            ......Respondents.


Hon'ble Vikram Nath J.

This petition has been filed by the tenant for quashing the judgment and orders dated 21.7.1984 and 22.10.1983 passed by respondent no. 1 and 2 whereby the application for release of the premises in dispute under section 21(1)(a) of U.P. Urban Buildings( Regulation of Letting, Rent and Eviction) Act,1972( hereinafter referred to as the Act ) of the landlord respondent nos.3 and 4 has been allowed and direction for the eviction of the petitioner was given.

The dispute relates to a shop situate in Chauk Bazar, Banda City Banda of which the petitioner is a tenant. Kamta Prasad respondent no.4 purchased the shop in dispute vide registered sale deed dated 24.5.1978. Pursuant thereto a notice was given as required under the proviso to Section 21(1)(a) of the Act and after waiting for three years an application of release was filed on 1.7.1982. The landlord setup his own personal need to establish his own business in the shop in dispute. It was alleged that the landlord did not have any other accommodation. It is also alleged that the shop in dispute was bonafide and genuinely required by him.

The petitioner filed written statement, in which apart from denying the need of the landlord applicant, it was also alleged that the application for release was legally not maintainable as no notice as required under the proviso to Section 21(1)(a) of the Act was given. Pursuant to the written statement the landlord filed affidavit and established that notice has been served upon the petitioner in December 1998.

Both the parties have led evidence in support of their cases. The Prescribed Authority vide judgment dated 22.10.1983 held that notice was given; that the need set up by the landlord was bonafide and pressing; and also that in the event the release application was allowed then the tenant petitioner would suffer lesser hardship than the landlord. Aggrieved by the same, the petitioner filed an appeal under section 22 of the Act, which was registered as Rent Appeal No. 126 of 1983. The appellate authority also vide judgment dated 21.07.1984 agreed with the findings recorded by the Prescribed Authority and dismissed the appeal. Aggrieved by the same, the present petition has been filed.

I have heard Sri S.K.Shukla, learned counsel for the petitioner and Sri Pankaj Srivastava, and Ms.Achakshi Sharma learned counsels for the respondent..

The contention of the petitioner is that in fact no notice was given as required under the proviso to section 21(1)(a) of the Act. In support of his contention the petitioner has placed reliance upon the release application and it is contended that there is no mention in the release application that six months notice to vacate the shop was given by the landlord. A perusal of the release application also does not indicate of any notice being given. However, subsequently the landlord filed the affidavit and also filed a copy of the notice and proved the same. The service was also proved by affidavit. The Prescribed Authority considered the respective contentions and relying upon the own affidavit of the petitioner wherein he had not specifically denied the service of the notice but had only alleged that no valid notice had been given, held that the notice had been validly served. This finding of service of notice based upon the evidence on record also affirmed by the appellate authority, being a finding of fact cannot be interfered with in writ jurisdiction under Article 226 of the Constitution.

Learned Counsel for the petitioner has next tried to assail the finding of bonafide need and comparative hardship. However, perusal of the judgment of the Court below indicate that both the findings are based upon the evidence on record and due consideration of the same. These findings also being findings of the fact cannot be interfered with by this Court in its extra ordinary jurisdiction under Article 226 of Constitution.

In the circumstances, I do not find any merit in the petition. The impugned judgment does not suffer from any infirmity. The petition is concluded by concurrent findings of fact.

The writ petition is accordingly dismissed.

At the end, learned counsel for the petitioner-tenant prayed that time to be granted to vacate the premises. Learned counsel for the respondent has agreed for allowing time to vacate fill 31st August 2005 subject to the conditions laid down below in the form of undertaking to be filed within three weeks before Prescribed Authority, and during the said period the petitioner-tenant will not be evicted from the premises in dispute.

Learned counsel for the petitioner submitted that undertaking shall be filed by the petitioner before the Prescribed Authority on the terms and conditions imposed by this Court:-

1.The tenant-petitioner shall file before the concerned Prescribed Authority, on or before 28th,February 2005 an application along with his affidavit giving an unconditional undertaking to comply with all the conditions mentioned hereinafter:

2.Petitioner-tenant shall not be evicted from the accommodation in his tenancy up to 31 August, 2005. Tenant-petitioner, his representative/assignee, etc. claiming through him or otherwise, if any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before 31 August, 2005 to the landlord or landlord's nominee/representative (if any, appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned Prescribed Authority) time and date on which Landlord is to take possession from the tenant.

3.Petitioner shall on or before 21st March December, 2005 deposit entire amount due towards rent etc. up to date i.e. entire arrears of the past, if any, as well as the rent for the period ending on the31 August, 2005.

4.Petitioner and everyone claiming under him undertake not to ''change' or ''damage' or transfer/alienate/assign in any manner, the accommodation in question.

5.In case tenant-petitioner fails to comply with any of the conditions/or direction/s contained in this order, landlord shall be entitled to evict the tenant-petitioner forthwith from the accommodation in question by seeking police force through concerned Prescribed Authority.

   6.       If there is violation of the undertaking of any one or more of the       conditions contained in this order, the defaulting party shall pay     Rs. 25,000/- (Rupees Twenty five thousand only) as damages       to the other party besides rendering himself/herself liable to be     prosecuted for committing grossest contempt of the Court.




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